2011 PLP 967 (MLD)

SYED ZAKIR HUSSAIN, J.

This Criminal Jail Appeal is preferred by the appellant Muhammad Ismail against the conviction and sentence awarded by the learned 1st Additional Sessions Judge, Larkana, in Special Case No.1122 of 2004, in Crime No.50 of 2004 of Police Station Mahotta, under section 308(2), P.P.C., by way of the Judgment dated 29-4-2010, ordering him to suffer imprisonment for fourteen years, with fine of Rs.100,000, as compensation to the mother of the deceased children, and in default of payment whereof, to suffer S.I for two years, with benefit of section 382-B, Cr.P.C. The appellant has prayed for setting aside' of the same.

2. Necessary facts of the prosecution's case are that the complainant Ali Hassan lodged report with the aforesaid police station on 26-9-2004 at 0500 hours that on 24-9-2004 at 2-00 p.m. the appellant took away his children namely Muhammad Aslam aged about 7 years and baby Hajran aged about 9 years from his house situated in Kausar Mill Mohalla, Larkana, who remained missing together with the appellant until he stood informed that the appellant having thrown them into the Rice Canal caused their death with an intention to commit their murder, from the path near New Bus Stand, Larkana, and hence, he approached the police for appropriate legal action in the matter. The police on such information registered the instant F.I.R, for the offences applied therein, against the appellant and arrested him. The police secured the dead bodies, of the deceased from the pinpointed place of wardat, 164, Cr.P.C. Statements of the witnesses, and confession of the appellant through the process of law before the competent Magistrate, and finally charge sheeted the matter in the Court of law for the purpose of trial accordingly.

3. The prosecution led evidence and examined the complainant Ali Hassan who produced F.I.R; and other witness namely Muhammad Ibrahim. The prosecution also examined the Judicial Magistrate Mr. Muhammad Fazul Bohio, who produced the letter of the Investigation Officer of the case requesting for recording the confession of the appellant, and confessional statement of the appellant as well, together with another letter of like nature for recording the statement of P.Ws. Muhammad Ibrahim and Mujahid Hussain. He produced such material, too. The learned trial Judge heard the matter and decided the same by way of the impugned judgment.

4. I have heard the appellant in person and the learned A.A.-G. for the State and perused the record as well.

5. The perusal of the judgment shows that there is no eye-witness of the case; the evidence of the P.Ws. 1 and 2 is the only evidence in the matter other than the evidence of the Magistrate and the material produced on his part; even the I.O. and M.O. and any mashir of place of wardat and that of securing the dead bodies of the deceased, have not been produced; similarly, the prosecution produced no memo of such proceedings; the evidence of the first two witnesses is not in the direction of their earlier statement of section 161, Cr.P.C. and that of section 164, Cr.P.C. respectively. Even the Medical Officer and I.O. do not appear to have appeared as witness in the matter; there appears no post mortem report showing the death of the children as un-natural or as alleged; and similarly, there is no record to show if the deceased children had even stood subjected to post mortem examination in the process of the investigation.

6. The record further reveals that the complainant is declared hostile; one eye-witness Mujahid Hussain has not been produced in evidence, although his 164, Cr.P.C. statement was produced in court, while the other though failed to support the case against the appellant, did not stand declared hostile and went unchallenged on the part of the prosecution as such. The diary dated 11-4-2010 of the case available in the R&Ps of the learned trial Court shows that the official witnesses namely, A.S.-I. Noor Ahmed and Inspector Sher Muhammad were attempted to be served with the process for the purpose of appearance in Court to give evidence but they could not be served and the process server was examined by the Court who returned the process against such witnesses with his report and deposed (when examined by the court as court witness in that regard) to the effect that both the said witnesses had expired. The statement of the process server also shows that he had also attempted to serve the prosecution witness A.S.-I. Ghulam Qadir Wassail with the process of like nature for the same purpose and failed to serve the same for the reason that he could not have found him on the given address during his such attempt and therefore, he returned the unserved process of such witness together with his report, too. This witness was examined on 22-4-2010. The diary of the said date as indicated above, though bears reference of other two witnesses as expired and thus remained un-served, but carries no reference of the report of the process server and that of the failure of the process server to serve the process upon the third witness referred to above. The diaries however, show that the Court adjourned the matter to 28-4-2010 for evidence with the directions for calling for the remaining P.Ws. On 28-4-2010, the diary shows that the learned Judge without having closed the side of the prosecution for the evidence of the remaining P.Ws. in either way, examined the accused under section 342, Cr.P.C, heard the matter and put off the case to 29-4-2010 for pronouncement of the judgment, which stood so pronounced accordingly. Therefore, there appears irregularities of material nature and an open erroneous exercise that did not let the material evidence appear on record through the remaining P.Ws. through whom the memo of place of vardat and that of securing the dead bodies of the deceased persons (secured in the process of investigation) could have been brought on record and a sufficient corroborating piece of evidence to the confession of the appellant, to the satisfaction of the norms of law, made available, as well.

7. The learned Judge appears to have believed the confession and used it as evidence sufficient for conviction of the appellant to the offence he was charged with, in total disregard of the evidence, which went against the prosecution although produced from its side, and the same went unchallenged on its part as well, and in absolute ignorance of the fact that there was no such evidence, as could show that the deceased children stood drowned, for the evidence of the P.Ws: though supports the fact that the deceased were missing on 24-9-2004, from 2-00 p.m. and on the next date, their dead bodies were secured from the Rice Canal, but does not prove the death, even as unnatural owing to being drowned in water. The learned Judge also ignored the fact that there was no postmortem report in the matter nor was there any medical evidence to prove the death of the deceased as alleged or otherwise. The learned Judge was duty bound to firstly satisfy him about the happening of the incident or commission of the crime reported against independent of the confession in question.

8. The case law reported as 2008 SCMR 396, relied upon by the learned Judge, holding the confession sufficient for the conviction provided it is found voluntary and true, has been misinterpreted and misconceived on his part, for the words "voluntary" and "true" themselves, lay a stress to the need of proof of the existence of the commission of crime so confessed, for the same, does not absolve the Court of its duty as to adjudging the same, otherwise, on merits. In the instant case, there appears no proof of the crime, the appellant was charged with or confessed on his part, owing to the position of the evidence produced in court, which makes the case somewhat subnormal in nature. Such confession of the appellant was therefore not open to be termed as "true" for want of proof as to happening of the incident reported against.

9. The record also shows that the learned Judge has referred the appellant to the medical expert for examination of his mental health and he has also examined such expert as witness in the Court who furnished in such process, his written medical opinion, as follows: "that he is suffering from schizophrenia keeping in view the nature of illness he is high risk patient of violence in future." The meaning of the word "Schizophrenia", as given in the Chamber 21st Century Dictionary, is as under: "Any of various forms of a severe mental disorder characterized by loss of contact with reality, impairment of thought processes, a marked personality change, loss of emotional responsiveness and social withdrawal."

10. The learned judge has also mentioned the said fact and the said opinion in the impugned judgment, yet he failed to appreciate the same in either way. The confession therefore, in the light of such opinion of the doctor, can hardly be acceptable to be voluntary. In other words, the appellant is proved to have had an unbalanced mental state, by medical evidence, and therefore, his confession before the Judicial Magistrate, can not be ruled out to have been an outcome of such state or that of his senselessness at the relevant time, and on such score alone, the confession of the appellant is doubtful and thus is not open to become basis for conviction exclusive of other positive incriminating evidence. The case law applied by the learned trial Judge, for the purpose of confession as discussed above, is distinguishable in the circumstances. In the case of Majeed v. The State reported as 2010, SCMR 55, at page 60/1 thereof, the apex court observed as follows:-- "Even otherwise, the recorded confession is sufficient for conviction if it is voluntary and true and requires no corroboration but as a rule of procedure the court is required to seek the corroboration of the same on material particulars. Reference is invited to Gul Muhammad v. The State 1991 SCMR

942. In this case confession has been fully corroborated by dying declaration."

11. The aforementioned case law obviously indicates that it is not prudent as a general Rule, to base any conviction in a criminal case on its sole and exclusive basis; the court must seek corroboration of independent nature against such confession before recording any conviction order on the basis thereof; in other words, the court is under obligation to enquire into all material points and surrounding circumstances to satisfy itself regarding the truthfulness and voluntariness of the confession; it is however not inflexible rule that retracted confession cannot become basis of conviction without independent corroboration, yet the rule of corroboration thereagainst, which serves as an abundant caution, which by itself, is acknowledged as rule of prudence, to be put to practice in such like matter, excludes possibility of doubt as to the guilt of the accused the maker of such confession, to the offence he is charged with beyond shadow of any reasonable doubt.

12. Even otherwise, from the perusal of the confession, it appears that the appellant made a statement to the effect that on the given date, place and time, he took his minor children named therein to the inspection path of rice canal near new bus stand and having caused them to recite 'Kalima' pushed them down into the canal and then he came back to the hotel and slept and on the following day lie stood arrested by the police before his brother from Gajjanpur Chowk.

13. The above statement of the appellant obviously does not carry the facts constituting confession in its strict sense, for the same bears no full account leading to draw a positive conclusion that he killed the children the deceased by having pushed them down into the canal, while the admission to have pushed the children down into the canal, referred to above, does not categorically constitute a ground for coming to the positive conclusion to the above effect. The same is the position of the answer of the appellant to the effect that he having killed his daughter and son by having caused them to be drowned in rice canal, committed mistake, to the question: the accused is asked if he is disposed to make a confession of his own free will. He replies as follows:' alone, of itself, does not seem to have composed 'confession' unambiguously in its strict sense, for want of necessary information or details of the commission of the crime of murder of his deceased children, on the one hand, and having no nexus with the question put to him, and being contradictory to his actual confessional statement referred to above, on the other. Similarly, the same neither bears motive nor showing intention to cause murder of his children. The answers of the appellant shown in the confession-sheet maintained by the Magistrate, in the matter, are in Sindhi language while the questions are in English language, and there is no certificate or mention of the fact that the Magistrate put the questions in Sindhi language by having translated the questions from the questionnaire of the confession-sheet, while the answers to such questions, being answers and in piecemeal, are not open to be put together just to gather a confession therefrom, either impliedly or otherwise. More so, the provision of section 364, Cr.P.C. states that the questions and answers in the matter of recording of confessional statement shall be in one and the same language, while the confession-sheet does not appear to be in accordance therewith being in two different languages, which is a violation of mandatory requirement of law. Further more, there appears in the confession sheet in question, no clarification, made to the appellant by the Magistrate at the relevant time that he would not be handed over to the police but sent to the jail, after he shall have made confession. Therefore, the same i.e. the confession of the appellant, in my view, is not open to be termed either to be voluntary or true in the circumstances, on such scores, too.

14. The State counsel did not support the confession in the circumstances. He concedes the appeal.

15. Keeping in view the above, I am of the firm view that the learned Judge acted erroneously, in the matter, with misconception and misinterpretation, and disposed of the matter purely on non-appreciation and non-application of the required norms of law and that of justice. Consequently, I allowed the appeal by the short order dated 6-12-2010, for the reasons in hand.

16. A copy of this judgment be sent to the Registrar of this Court, for serving the same on trial Judge, for future guidance. H.B.T./M-38/K Appeal allowed.